The Volokh Conspiracy
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From the majority opinion in State v. Blake, by Justice Sheryl Gordon McCloud:
Washington's strict liability drug possession statute, makes possession of a controlled substance a felony punishable by up to five years in prison, plus a hefty fine; leads to deprivation of numerous other rights and opportunities; and does all this without proof that the defendant even knew they possessed the substance.
This case presents an issue of first impression for this court: Does this strict liability drug possession statute with these substantial penalties for such innocent, passive conduct exceed the legislature's police power? The due process clauses of the state and federal constitutions, along with controlling decisions of this court and the United States Supreme Court, compel us to conclude that the answer is yes—this exceeds the State's police power….
In 2016, police executed a search warrant in Spokane, Washington, seeking evidence of stolen vehicles. They arrested three people on the property, including Shannon Blake. At the jail, a corrections officer discovered a small baggy containing methamphetamine in the coin pocket of Blake's jeans. The State charged Blake with possession of a controlled substance in violation of RCW 69.50.4013.
At trial, Blake relied on the judicially created affirmative defense of "unwitting possession." She testified that a friend had bought the jeans secondhand and given them to Blake two days before Blake's arrest. Blake said she had never used methamphetamine and did not know the jeans had drugs in the pocket. She acknowledged that the drugs had been "on [her]" on the day of her arrest. Blake's boyfriend also testified that Blake did not use drugs and that she had received the jeans from a friend….
The "constitutional protection[s] afforded certain personal liberties" implicated by RCW 69.50.4013 are (1) the principle that " '[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence'" and (2) the rule that the government cannot criminalize "essentially innocent" conduct.
With regard to the first constitutional limit, the principle that mens rea is generally a prerequisite to criminalization in "Anglo-American jurisprudence," it is certainly true that this general rule has exceptions. In Washington, for example, the legislature can still create strict liability crimes in certain circumstances: "our legislature has the plenary power to criminalize conduct regardless of whether the actor intended wrongdoing." In particular, the legislature may create "strict liability offenses to protect the public from the harms that have come with modern life by putting the burden of care on those in the best position to avoid those harms."
But the second constitutional limit, the rule against criminalizing "essentially innocent" conduct, does not have such exceptions, and it applies with special force to passive conduct—or nonconduct—that is unaccompanied by intent, knowledge, or mens rea.
The United States Supreme Court explained this over 60 years ago in Lambert v. California (1957). In Lambert, Los Angeles had criminalized "remain[ing] in Los Angeles for a period of more than five days without registering" with the city. [This was limited to defendants who had past felony convictions. -EV] A defendant charged with violating this ordinance was "given no opportunity to comply with the law and avoid its penalty, even though her default [failure to register] was entirely innocent." The United States Supreme Court held that this exercise of the police power to criminalize entirely passive, innocent nonconduct deprived defendant Virginia Lambert of her liberty without due process of law.
The United States Supreme Court applied the same reasoning to a similar statute 15 years later. In Papachristou v. City of Jacksonville (1972), that Court considered the constitutionality of a Florida ordinance that criminalized, among other things, "nightwalking." The Florida Supreme Court had upheld the ordinance after construing it "not to make criminal one night's wandering, only the 'habitual' wanderer or, as the ordinance describe[d] it, 'common night walkers.'" But the United States Supreme Court reversed. It explained that walking, strolling, and wandering—even at night—are "historically part of the amenities of life as we have known them." It continued that criminalizing such historically innocent conduct was impermissible for many reasons, including the fact that it made "criminal activities which by modern standards are normally innocent" and did so without proof of any "intent to commit an unlawful act." It concluded that criminalizing passive nonconduct while eliminating the requirement of a guilty mind violated due process clause protections, "cannot be squared with our constitutional standards[,] and is plainly unconstitutional." Lambert's and Papachristou's holdings rested on the due process clause of the Fourteenth Amendment.
Our state constitution's due process clause provides even greater protection of individual rights in certain circumstances. Thus, this court's precedent also enforces the constitutional due process limit on the reach of the State's police power (though often without specifying the specific constitutional source of that limit)…. [W]e have analyzed whether "the area of regulation [was] within the government's scope of authority and [whether] the particular ordinance [was] a reasonable regulatory measure in support of the area of concern." Applying that test, we have held that criminalization of passive nonconduct without mens rea "makes no distinction between conduct calculated to harm and that which is essentially innocent" and therefore exceeds the State's police power.
The strict liability drug possession statute challenged in this case is similar to the strict liability curfew ordinance challenged in Pullman. In Pullman, the defendant challenged a Seattle ordinance that prohibited "accompanying a child during curfew hours." By the language of the ordinance, "any minor under the age of 18 could be arrested for standing or playing on the sidewalk in front of his home at 10:01 p.m. on a warm summer evening." Justice Utter, writing for the majority, recognized that the government has an "independent interest in the well-being of its youth" and hence has authority to "enact laws to assist those whose primary responsibility is for the well-being of minors."
But the challenged law made "no distinction between conduct calculated to harm and that which is essentially innocent," and it bore "an insufficient relationship to the objective of safeguarding minors." We therefore concluded that the law was "an unreasonable exercise of the police power." We explained that the record before the court was "absolutely devoid of any evidence showing 'bad conduct'…. [T]he mere fact that the defendant was in the presence of two minors during curfew hours resulted in this prosecution."
Pullman stands for the rule that the state legislature's exercise of its otherwise plenary police power to criminalize entirely passive and innocent nonconduct with no mens rea or guilty mind violates the due process clause of the state and federal constitutions….
[T]he legislature criminalized exactly that sort of passive and innocent nonconduct in this case…. Because unknowing possession is just as innocent and passive as staying out late with a juvenile or remaining in a city without registering, we hold that this felony drug possession statute is just as unconstitutional as were the laws in Lambert, Papachristou, and Pullman.
To be sure, active trafficking in drugs, unlike standing outside at 10:01 p.m., is not innocent conduct. States have criminalized knowing drug possession nationwide, and there is plenty of reason to know that illegal drugs are highly regulated. The legislature surely has constitutional authority to regulate drugs through criminal and civil statutes.
But the possession statute at issue here does far more than regulate drugs. It is unique in the nation in criminalizing entirely innocent, unknowing possession. The statute would criminalize, to list a few examples:
"a letter carrier who delivers a package containing unprescribed Adderall; a roommate who is unaware that the person who shares his apartment has hidden illegal drugs in the common areas of the home; a mother who carries a prescription pill bottle in her purse, unaware that the pills have been substituted for illegally obtained drugs by her teenage daughter, who placed them in the bottle to avoid detection." "A person might pick up the wrong bag at the airport, the wrong jacket at the concert, or even the wrong briefcase at the courthouse. Or a child might carry an adult's backpack, not knowing that it contains the adult's illegal drugs." …
This court [has] recognized the harshness of its [earlier statutory holding] holding that RCW 69.50.4013 permissibly criminalized innocent, passive, unknowing possession. It addressed that harsh result with what it admitted was an "anomalous" device: the court created a brand new affirmative defense out of whole cloth. Cleppe decided that an "unwitting possession" affirmative defense, that the defendant had the burden to prove, would "ameliorate" the harshness of its strict liability decision…. [But while a] judicially created affirmative defense may "ameliorate the harshness" of criminalizing innocent nonconduct, but it cannot save an unconstitutional statute….
We do nothing here today to disturb the legislature's power to enact strict liability crimes…. The key distinction between this simple possession statute and other, valid, strict liability crimes is that the former statute penalizes passive and innocent nonconduct (without mens rea) while the latter statutes do not.
For example, to prove that a defendant practiced law unlawfully, the State must show that the defendant actually "practice[d] law, or [held] himself or herself out as entitled to practice law." That conduct is, well, conduct. To be sure, Yishmael held that the defendant need not know that his or her conduct constituted the "practice of law." But we continued that the State must still prove the activity of practicing law, and that, of course, requires the State to show intentional activity (not passivity). As we explained, "Yishmael did not dispute that he gave his clients advice about homesteading, adverse possession, and talking with the police, and that he offered assistance in completing documents to be filed with the county recorder's office." Not surprisingly, Yishmael did not claim that he had not intended any of those actions.
Similarly, to convict a defendant of rape of a child, the State must prove that the defendant "ha[d] sexual intercourse with another" who is under a particular age, depending on the degree of the crime. Sexual intercourse is conduct, not passivity. The crime is "strict liability" in the sense that the State need prove only "'the doing of the acts constituting the offense'"; the State need not prove that the defendant knew the victim's age, which is what makes the acts constituting the offense criminal. But the State must certainly show the activity of sexual intercourse, not just innocent passivity.
The drug possession statute is different. It does not require the State to prove any intent or even any action. And in this case, the State did not prove that Blake did anything except wear jeans that had pockets. Valid strict liability crimes require that the defendant actually perform some conduct. Blake did not. Under the due process clauses of the state and federal constitutions, the legislature may not criminalize such nonconduct….
Justice Charles Johnson dissented (for three Justices), concluding that "The legislative power to enact strict liability crimes remains consistent and undiminished …. Our continued recognition of this legislative power applies with special force in this case given the length of time that the crime of possession of a controlled substance has been upheld as a strict liability crime. The constitutional analysis in the majority's decision is not convincing enough to outweigh those considerations."
Justice Debra L. Stephens concurred in part and dissenting in part, concluding that the statute should be interpreted to avoid strict liability.